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No, not a Tom Hanks sequel

The Colorado Supreme Court on Tuesday ruled 4-3 that Section 3 of the Fourteenth Amendment is not a dead letter. The court found Donald J. Trump ineligible to appear on the 2024 Colorado primary ballot. The Jan. 6 violence was consciously encouraged by Trump, that the violence constituted an insurrection, that his actions are disqualifying, and that no legislative action is required to make it so. The provision is self-executing.

The case brought by several Republicans and one independent voter charged that it would violate state election law if Secretary of State Jena Griswold placed an ineligible candidate on the Colorado primary ballot. Specifically, that Trump is ineligible (Washington Post):

“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” the decision reads. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”

[…]

“We do not reach these conclusions lightly,” the majority wrote. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

Don’t be absurd

The Colorado court’s decision (between the lines) includes numerous FUs to the former president and his hapless attorneys.

The amendment’s other sections require no enabling legislation, the court found. Section 3 adds a disqualification to the constitution’s existing qualification for the presidency, no different from the age and citizenship requirements. The court cites multiple cases where states held those provisions to be self-executing (pg. 31). California refused to place a twenty-seven-year-old on the presidential ballot; Colorado (in the Hassan case involving then-Judge Neil Gorsuch) excluded a naturalized citizen from the presidential ballot; Illinois found a thirty-one-year-old candidate disqualified from its presidential ballot.

Now-Justice Gorsuch wrote in the Hassan decision he surely must remember:

… it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

The court brushed aside Trump’s arguments that in exercising its right to free association a political party has the right to nominate whomever it chooses. Could it then nominate that twenty-seven-year-old or someone not a natural-born citizen? No. Don’t be absurd, the court did not add.

The argument that Section 3 does not apply to the presidency the court also found absurd (CNN):

Section 3 of the 14th Amendment says oath-breaking insurrectionists can’t serve as senators, representatives, presidential electors, “or hold any office, civil or military, under the United States, or under any State.” But it doesn’t mention the presidency.

This textual vagueness is why the trial judge kept Trump on the 2024 ballot. But the high court disagreed. And this was the linchpin of their decision to disqualify Trump.

Trump argued that as mentioned in Section 3 the presidency is not an “office” under the Constitution. But the court finds 25 times elsewhere in the Constitution where the presidency is referred to as an “Office” (i.e., you’re wasting our time).

The court concludes (pg. 127):

Our independent review of the record in this case brings us to the same conclusion: President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power. The tenor of President Trump’s messages to his supporters in exhorting them to travel to Washington, D.C. on January 6 was obvious and unmistakable: the allegedly rigged election was an act of war and those victimized by it had an obligation to fight back and to fight aggressively. And President Trump’s supporters did not miss or misunderstand the message: the cavalry was coming to fight.

The decision itself is “unassailable” in the opinion of retired conservative appellate judge J. Michael Luttig (CNN):

“The individual justices of the Colorado Supreme Court brought honor to their court as well to the state and federal judiciaries with their opinion tonight in this historic case,” Luttig told CNN’s Pamela Brown on “AC360” Tuesday, describing their “meticulous” efforts to address all the issues involved in the case.

“Their opinion is unassailable under the objective law of the federal constitution and section 3 of the 14th Amendment. The Supreme Court of the United States ought to affirm this decision today,” he added.

The unprecedented decision opens a can of worms and raises too many questions to answer this morning.

What will SCOTUS decide? Will John Roberts find a way to “not mix in” and/or let the Colorado decision stand? Will other states follow if that happens or if the Supremes uphold Colorado? Will Republicans nominate someone else if they do? (Can RNC members afford the private security?) Will Justice Clarence Thomas, wife of Ginny of Insurrection, recuse? Will the outcome help Joe Biden or hurt him?

Amanda Marcotte worries what happens if Trump gets stripped off several state ballots (Salon):

All of those never-Trumpers we thought were our buddies will abandon the #Resistance so fast it will make Democratic heads spin. And the MAGA types could be so angry about losing Dear Leader they will rush the polls to vote as hard against Biden as possible. 

David Frum admits his predictions about the case were wrong and believes it more likely Trump will not be the GOP nominee. SCOTUS now has an opportunity to save itself and the republic on which Clarence Thomas‘ paycheck stands (The Atlantic):

The U.S. Supreme Court now has the opportunity to offer Republicans an exit from their Trump predicament, in time to let some non-insurrectionist candidate win the Republican nomination and contest the presidency.

The Colorado court has invited the U.S. political system away from authoritarian disaster back to normal politics—back to a race where the Biden-Harris ticket faces more or less normal opponents, rather than an ex-president who openly yearns to be a dictator.

Naturally, MAGA Republicans are not amused (CNN):

Republican National Committee Chairwoman Ronna McDaniel attacked the Colorado Supreme Court’s decision to remove former President Donald Trump from the state’s 2024 ballot

She called it “election interference” in a post to X, and said the RNC’s legal team “looks forward to helping fight for a victory.”

House Speaker Mike Johnson said the ruling was “nothing but a thinly veiled partisan attack.” He said voters should be able to decide the nominee.

“Regardless of political affiliation, every citizen registered to vote should not be denied the right to support our former president and the individual who is the leader in every poll of the Republican primary,” Johnson said.

The decision is on hold until January 4, one day before Griswold is required to set the March 5 primary ballot candidate list in stone. This will allow the U.S. Supreme Court time to decide whether it will review the case. Which it almost certainly will. Trump will insist.

Happy Hollandaise to all y’all!

For now…

The Colorado Supreme Court threw Trump off the ballot because they say he’s disqualified under the `4th Amendment for stoking an insurrection on January 6th:

The 4-3 ruling, which rests on an interpretation of the 14th Amendment, will almost certainly force the issue to the U.S. Supreme Court to resolve whether Trump, the leading candidate for the Republican nomination, is eligible to hold future public office.

“We do not reach these conclusions lightly,” the Colorado majority opinion reads. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

The court, which consists entirely of Democratic appointees, is the first in the nation to side with activists and voters who have filed numerous lawsuits claiming that Trump is barred from office under the 14th Amendment’s “insurrection clause.” That clause states that anyone who “engaged in insurrection or rebellion” after taking an oath of office to support the Constitution is forbidden from holding any public office.

The divided decision, issued just two weeks after the court heard oral arguments in the case, reverses a Denver judge’s ruling that found that while Trump had engaged in insurrection, the Constitution’s ambiguity on the matter left Trump eligible to remain on the ballot. The four-justice majority of the Colorado high court agreed with the lower-court judge that Trump engaged in insurrection — and found that he is disqualified from the ballot as a result.

Moments after the ruling, Trump vowed to appeal the decision to the Supreme Court.

The Court issued a stay allowing Trump to appeal before January 4th, the day before the ballots are scheduled to be printed. There is every reason to believe they will do it.

I would imagine that the court is going to go Trump’s way on this. They do not want to open Pandora’s box on this, creating ballot chaos in a number of states. But you never know.

It’s time to tell your people to back off

Obama campaign manager Jim Messina has a message for No Labels, which principal Joe Lieberman insisted would only run a candidate for president if they thought he or she could win. And just as important, Lieberman has been clear that they would not run anyone if it looks as though it would help Trump win:

The idea that a “unity ticket” featuring a Republican and a Democrat could somehow produce a nominee with “a clear path to victory” is worse than a political fiction. The group behind it, No Labels, is pushing a dangerous lie that would simply serve to put Trump back in the White House.

How can I be so certain? Look at the last half-century of election results. In modern U.S. presidential history, third parties have not won much. In 1968, George Wallace won 46 electoral votes by running a regionally-targeted (and racist) campaign. Since then, they’ve won zilch — not a single state. Not Gary Johnson or Jill Stein in 2016, and not Ralph Nader in 2000. None of them broke 5 percent of the vote.

Then there’s Ross Perot, who No Labels aspires to emulate for his appeal to “the vast middle of the electorate.” Despite unlimited cash and facing an unpopular incumbent in George H.W. Bush and a near-unknown in Bill Clinton, Perot failed to win a single state. Can No Labels twist the data and make an argument that Perot could have won if he had done things differently? Sure! But that’s like saying I could have been the quarterback of the Denver Broncos — technically true, but come on!

There’s a reason for this lack of success: Our political system isn’t designed to support third parties at the presidential level.

The biggest barrier is the Electoral College. States use a “winner takes all” system to distribute their electoral votes, which is why Perot won nearly 20 percent of the popular vote but got a big fat zero from the Electoral College. This leads to two practical effects: First, parties are incentivized to form the largest coalitions possible, which naturally leads to a two-party system. Second, many voters don’t want to “waste” their vote on a candidate with no chance of winning, so they default to the major parties. Both effects make it harder for third parties to compete.

The question of whether Americans are willing to vote for a third party comes up every presidential cycle. Consider this: Two months before the 2016 election, Gary Johnson polled at 10 percent. In June 1992, Perot led all candidates at 39 percent. These polls were mirages — neither got anything close to that number of votes. Third parties often poll well during a campaign, but that support vanishes on Election Day.

This points to a larger truth: Americans think a third party is needed, even if they won’t vote for one. Voters want to express discontent with their party. Sure, nearly half of the electorate thinks a third party is necessary, but No Labels mistakenly assumes this means those voters will actually vote for one. Once Americans get a good look at the alternatives, like Perot or Johnson, they end up sticking with the major parties.

While a third-party candidate can’t win, No Labels could still throw the election to Trump, and it wouldn’t take that many votes. Let’s look at three battleground states: Michigan, Pennsylvania and Wisconsin.

In 2016, Trump’s margin of victory was less than 50,000 votes in these states, and third parties won significantly more votes than that in each one. Did they flip the election for Trump? It’s possible. In 2020, with no third parties to contend with, Biden beat Trump in Michigan by 154,188 votes, Pennsylvania by 80,555 votes and Wisconsin by 20,682. All of those margins are smaller than what third parties received in 2016. These Blue Wall states will be close again in 2024, and if third parties perform similarly in 2024 as they did in 2016, they will deny Biden a second term.

This alone should give any responsible person pause. A No Labels candidate in these states could easily hand the election to Trump. But maybe that’s the goal. Whatever their original intentions, the people behind No Labels — including Harlan Crow, the GOP mega-donor who gifted travel and luxury vacations to Supreme Court Justice Clarence Thomas — are using dark money on this folly. The group is working to raise $70 million and has already qualified for the ballot in 12 states, including states that could be pivotal to the outcome, such as Arizona, Nevada and North Carolina.

There are serious questions about how the group’s ticket would be picked (likely behind closed doors) and whether acting like a political party without registering as one is legal. Not to mention, its own founders and staff are in “open revolt” over the group’s current aspirations.

While I’m not a fan of polling done more than a year out (seriously), The Wall Street Journal did an analysis that showed third parties would more likely draw votes from Biden. The report points to an NBC survey that has Biden and Trump tied head to head, but if you add a third-party candidate, Trump leads by 3 percent. (Of course, this math might change if Liz Cheney or RFK Jr. make a serious run.) New polling of young voters shows a similar dynamic, shrinking Biden’s lead with the introduction of third parties.

Historical data suggests the same. Based on exit polling (a highly flawed metric), No Labels believes Perot in 1992 may have siphoned votes from both parties equally. However, an American Journal of Political Science study concluded that Perot increased turnout by 3 percent and decreased Clinton’s margin of victory by 7 percent.

If we look at who helped Biden win last time, they are the type of voters who might switch parties: Voters who selected a third party in 2016 voted for Biden by 29 percent. Those voters could be the difference for Biden in 2024.

From all the data I see, the practical effect of having No Labels run a third-party campaign is that Trump would win. And any argument that a third party can win next year is a false promise, an illusion and a lie spread by people with ulterior motives.

The prospect of Trump being president again should be repellent to any decent person who believes in freedom and building a more perfect union. The people at No Labels know better than this. It’s time to cut the crap, believe the data and be honest with the American people. Any well-funded third-party candidate would be a disaster for our republic — and risks putting us on a direct path to a dictatorship.

It. Is. Insane and Lieberman and Manchin and Nancy Jacobson (who runs No Labels) and anyone else tempted to run a protest candidacy or make a protest vote is PLAYING WITH FIRE. They need to back off now. And, I would add, it would be nice if someone could have a chat with RFK Jr and Cornell West as well because they are being narcissistic destroyers of everything they claim to care about if they enable Donald Trump in any way.

I know that some idealists say they will refuse to vote for the lesser of two evils. We go through that in most elections. Maybe it has more salience now but it shouldn’t. There is simply no comparison on any level between Joe Biden and Donald Trump who is the personification of evil in ways that are absolutely terrifying. I’m hopeful that most people will come around but it’s going to keep me awake at night worrying about it for sure.

On the other hand, here’s a little hopium for you to sleep on tonight. Stuart Stevens is one of the most astute Never Trumpers around:

"I think Biden is going to win by a larger margin this time. I think it's going to be an easier race"@stuartpstevens makes bold predictions on the 2024 presidential race. pic.twitter.com/zGLHWMX8gs

— 11th Hour (@11thHour) December 19, 2023

I don’t know if he’s right but he’s been right about a lot of things so I take heart in what he says.

Happy Hollandaise!

Watch that moment: https://t.co/7MqQhv8Zp4

— The Recount (@therecount) December 19, 2023

I guess he’s forgotten all about this:

Former Transportation Secretary Elaine Chao called out former President Donald Trump for his racist broadsides aimed at her and his other anti-Asian rhetoric.

Trump, who is ramping up his 2024 presidential campaign, has repeatedly made racist attacks on Chao, who served in his administration, in recent months. Trump’s attacks often involve jabs at her husband, Senate Minority Leader Mitch McConnell, R-Ky., who has drawn Trump’s ire since he publicly condemned Trump in the wake of the Jan. 6, 2021, Capitol riot.

In a Truth Social post Monday, Trump tried to baselessly suggest that Chao had a connection to the classified documents recently found in President Joe Biden’s Delaware home and an office in Washington.

“Does Coco Chow have anything to do with Joe Biden’s Classified Documents being sent and stored in Chinatown?” Trump wrote. “Her husband, the Old Broken Crow, is VERY close to Biden, the Democrats, and, of course, China.”

In a statement shared with NBC News condemning Trump’s attacks, first reported by Politico, Chao, who immigrated to the U.S. from Taiwan as a child, spoke out about the racism Asian Americans have faced.

“When I was young, some people deliberately misspelled or mispronounced my name. Asian Americans have worked hard to change that experience for the next generation,” Chao said. “He doesn’t seem to understand that, which says a whole lot more about him than it will ever say about Asian Americans.”

In a statement, Steven Cheung, a spokesperson for Trump, said “people should stop feigning outrage and engaging in controversies that exist only in their heads.”

Chao had avoided responding to Trump’s attacks. In response to a Truth Social post last month in which Trump again used a racial slur against her, Chao said in an interview with CNN that she thought “it would be very helpful if the media does not just repeat that racist tweet.”

After that, it’s hard to believe that McConnell would use his wife’s appointment as proof that Trump isn’t a racist, but there you are. He is just as shameless as Trump.

And remember, McConnell’s legacy of democracy destruction is almost as important as Trump’s. He showed to the nation and the world that norms don’t matter when he installed Trump nominees Gorsuch and Barrett on the high court despite breaking every understood process to get it done and then smugly reversed himself just three years later to accomplish the same thing. They are entwined in history forever. And despite his supposed antipathy toward Trump, I don’t think he minds it much at all. He got what he wanted. That’s all he cares about. They are very much alike.

Happy Hollandaise!

It’s going to be a long year, people. It’s clear that it’s going to require a lot of fortitude to avoid falling into despair over the next few months if they continue to cover this election as they have been. What I see happening is that while they are appropriately covering Trump’s ascent into full Hitlerian fascism (for now, anyway) they are also succumbing to their usual need to “balance” the coverage by hyping Biden’s unpopularity.

I’m not suggesting that he’s popular. He isn’t. But just look at the NY Times coverage of their polling. I’m sure you remember this one from last month:

Ok. Here’s their latest poll which shows that Biden is leading Trump nationally among likely voters:

Here’s the website:

I’m not kidding when I say he’s leading nationally which ought to account for a mention in at least one headline fergawdsakes!

Here’s how they address it way down in the main article:

Overall, registered voters say they favor Mr. Trump over Mr. Biden in next year’s presidential election by two percentage points, 46 percent to 44 percent. The president’s job approval rating has slid to 37 percent, down two points from July.

But there is considerable uncertainty over whether disaffected voters will even vote. While it is still early, the race is flipped among the likely electorate, with Mr. Biden leading by two percentage points.

That’s it. No biggie.

The emphasis in every piece in the NY Times about its own article is negativity about Biden. How about this?

Economic concerns remain paramount, with 34 percent of registered voters listing economic- or inflation-related concerns as the top issue facing the country. That’s down from 45 percent in October 2022, but still high.

Whatever. Biden’s old.

Now maybe there will be some other articles forthcoming about this poll that highlight these facts but everyone, including the Times, knows that the way they frame their findings will drive the news cycle for days, just as a lot of people are going home for the holidays and sitting around watching the news a lot more than they usually do.

I don’t know about you, but this stuff makes me see red. The mainstream media has been hounding Biden ever since the Afghanistan withdrawal (which they also used as some kind of “reset” in their coverage so as not to seem biased) and it’s been relentlessly dismissive of his accomplishments ever since then. It’s maddening.

Tom and I have been writing about this throughout the last three years, trying to keep our own sanity but mainly hoping that we could provide some perspective for our readers. Monitoring these media trends has been part of what I’ve done here at Hullabaloo since 2003 when its coverage of the war in Iraq was abominable. But even before that my writing in various other online outposts about the Clinton years and particularly about the 2000 election coverage (which is showing some alarming similarities) focused intently on the way the media shapes our politics and, mostly, not for the better.

Calling them out for this was the single most important motivation for the creation of the left blogosphere, of which I’m still proud to have been a founder, back in the day. And it remains one of the greatest motivators for what we do here yet today. Clearly, it’s still necessary. This impulse to “balance” the coverage is in the media DNA and it has to be countered.

If you can help us to keep doing what we do for another year, I would be most grateful. If you’d like to contribute, you can use the snail mail address on the left or click one of the buttons below.

Thank you so much for reading Hullaballoo and I hope you’ll keep coming back. We will do our best to deliver something interesting for you each and every day.

cheers,
digby

Happy Hollandaise!

Trump said today that when he is President, he will allow shoplifters to be shot on sight as they are trying to leave a store. https://t.co/8bOE4YzVns

— Ron Filipkowski (@RonFilipkowski) September 29, 2023

We will immediately stop all of the pillaging and theft. Very simply: If you rob a store, you can fully expect to be shot as you are leaving that store.

He said that a couple of months ago in the wake of a full summer of panic over an alleged wave of violent shoplifting all over the country. The LA Times’ Michael Hilzik takes a look at this issue in light of the fact that the National Retail Federation’s report that “organized shoplifting” was sweeping the nation is now revealed to have been a total lie:

The statistic, published in April by the National Retail Federation, was that “organized retail crime” — including the videotaped flash mob smash-and-grab events aired in frequent rotation on the cable and evening news shows — came to more than $45 billion a year.

Specifically, the NRF declared that organized crime accounted for “nearly half” of the $94.5 billion in retail “shrink” attributed to theft or “other causes” in 2021. The claim appeared in the latest edition of the federation’s annual report on organized retail crime.

On Dec. 4, the federation acknowledged that its estimate was a fabrication and it “updated” its report to remove the estimate.

But the damage had been done. Politicians at the federal and state levels jumped on the original report to push legislation aimed at fighting the onslaught of thieves.

In October, Sen. Charles E. Grassley (R-Iowa) staged a “Fight Retail Crime Day” event on Capitol Hill, at which he stood next to NRF executives to push bipartisan legislation to create a Center to Combat Organized Retail Crime in the Department of Homeland Security.

[…]

News organizations also swallowed the NRF’s assertion whole, partially because it fed into the perception, assiduously retailed by the retailers’ lobby, that the retail trade was suffering “unprecedented levels of theft coupled with rampant crime in their stores,” as an NRF official put it in September. “The situation is only becoming more dire,” he added.

The Washington Post editorial board, drawing on the NRF claim and a string of recent thefts in its suburban backyard, declared that “‘shoplifting’ is too mild a word” for what was going on and that “no community, it seems, is immune from the recent spike in organized retail crime.” The board called on Congress to pass Grassley’s measure, but quick.

The editorial writers cautioned that law enforcement would have to contend with thieves displaying “undeniable smarts,” though since the theft ring they mentioned in their piece had been caught in part because its getaway car got caught in traffic, the level of their brainpower might have been deniable after all.

There have been very few mea culpas in the press and I have little doubt that Trump will just keep saying he wants shoplifters to be shot because his crowds love it. So yes, the damage has been done.

Hilzik looked at how this whole thing came about and it’s interesting because we’re so bombarded with disinformation these days that it’s very hard to sort the real from the fictional. And when the mainstream media runs with it, it’s even harder. (Just look at the misconceptions that abound about the national economy.)

The goal of statistic-mongers might be to promote an ideological viewpoint or undermine accepted science, as when fossil fuel interests manipulated statistics to make it seem that global warming wasn’t happening.

Sometimes it may be to get attention, which seems to be the case with those annual estimates by the consulting firm Challenger, Gray & Christmas of the productivity losses suffered by employers during the March Madness college basketball tournament ($17.3 billion this year, supposedly); one look at the firm’s methodology shows that it’s assembled from conjecture built upon conjecture built upon conjecture, all adding up to absolutely nothing verifiable.

One of my favorite examples of the media running with an unverifiable statistical claim involved the seminal pornographic movie “Deep Throat.” The producers of a 2005 documentary asserted that “Deep Throat” had grossed $600 million, which they said made it the most profitable movie in history. Among the evidence they cited was that so much cash rolled in from theaters that the movie’s mob-connected backers couldn’t count it all, but weighed it in bags instead.

As I pointed out, no one said how many bags there were, or their size, what denominations were inside, or indeed how much they weighed. All we knew, I wrote, was “that a bag of $1 bills weighs exactly the same as a bag of hundreds, and that each weighs less than a bag of horse manure,” which I thought was in the bags the documentary makers were selling.

That’s funny but this is actually quite a serious problem. He goes on to unpack what happened with the retail sales statistics, pointing out that the figures these retail lobbyists routinely publish on “shrinkage” are bs. It’s not just shoplifting, it’s also pilferage by employees and lax inventory systems.

This particular lie found its way into circulation due to congressional testimony by a retail executive who threw out the 45 billion dollar figure for “organized shoplifting” based upon a 2016 report about all shrinkage. Evidently, the Retail Federation didn’t know the numbers were BS and just ran with it. (Or so they say.)

Hizlik holds the press mostly responsible,however, as we all should:

The news organizations that participated in this cabaret should be ashamed of their gullibility. Some, such as CNN, have expressed appropriate skepticism. The [Washington] Post corrected its editorial to reflect the NRF’s update, though its deputy opinion editor, Charles Lane, told Judd Legum of the Popular Information blog that although its editorial writers “relied on the NRF data in good faith, not knowing it was erroneous,” they stood by their policy prescriptions.

Yet why should anyone rely on the NRF data, given the industry’s obvious incentives to exaggerate the truth about organized shoplifting and obscure the facts?

Big retail chains have been using claims about mob shoplifting to obscure why they’ve been closing stores in some neighborhoods. Target has attributed closings of stores in Seattle, New York and San Francisco to crime, although in some cases those neighborhoods have been shown to have lower shoplifting rates than locations left open. The real issue, in other words, may be that the retailer made a mistake in locating these stores and is trying to blame local residents, rather than its own executive decision-making.

This, this, this. The over expansion of retail stores is the real story. All brick and mortar retail is being hit hard by the rise of mail order and the pandemic made it even more obvious. This isn’t about roving gangs of violent thugs destroying stores. It’s about Americans changing their shopping habits.

It’s also about scapegoating others for bad decisions made by executives:

Shrink, reduced to shoplifting, has become an all-purpose defense of executives tasked with explaining to investors why profit and margin growth may have slowed. For example, at Dick’s Sporting Goods, which has pushed the shrink narrative hard, Chief Financial Officer Navdeep Gupta told Wall Street analysts on Nov. 21 that the “shrink headwind” had pared about a half-percent from the firm’s profit margin on merchandise.

The company’s third-quarter earnings report told a more detailed story. There, Dick’s reported that margins had decreased by 1.3 percentage points — well more than double the impact of shrink — due to “higher markdowns … on excess product.” In other words, margins narrowed more because of faulty buying decisions made internally than from thefts committed by workers or marauders.

“We continue to invest in efforts to keep our stores, teammates and athletes safe,” Gupta told investors, suggesting an image of workers holed up behind barricades against interlopers, like the characters in “Night of the Living Dead.”

As Hilzik says, the media are suckers for taking these businesses at face value when they make claims like this. As he shows in the article, it’s really not that hard. And they certainly should be more skeptical of political actors who play this stuff up for partisan gain. But let’s face facts, these stories are catnip for them too. The grainy videos of marauding “urban youth” trashing the stores were played over and over again because they titillate the audience (and the newsrooms, no doubt.) It’s all part of a tabloid ecosystem that has degraded the body politic for decades.

The big problem here is that the benefits of any focus on crime always goes to the authoritarian wingnuts in our political system and it’s never good. It’s catastrophic now with a full blown authoritarian movement poised to take action if they get into power. The media has to be much more circumspect these days. They simply cannot afford to indulge these impulses right now. You don’t even want to think about the consequences.

When we complain about the media, this is why

What’s wrong with this picture?

In most situations, comparing a political opponent to Adolf Hitler might seem like an extraordinary step. For Joe Biden’s campaign, it has become part of the routine of running against Donald Trump.

When the former president said that undocumented immigrants were “poisoning the blood of our country” during a New Hampshire rally on Saturday, a Biden campaign aide charged with monitoring Trump immediately circulated the comments to staffers, according to senior officials.

Within hours, the campaign released a statement attacking Trump for having “channeled his role models as he parroted Adolf Hitler, praised Kim Jong Un, and quoted Vladimir Putin while running for president on a promise to rule as a dictator and threaten American democracy.”

In fairness, the article goes on to explain, correctly, that Trump is evoking Hitler in his speeches. The Biden campaign even sent the article around. But my first reaction to seeing it was that this frame of the story — Biden has done something unusual — was the opposite of what it should be, which is that Trump is doing something unusual. It should be:

“In most situations, a candidate affirmatively quoting Adolph Hitler is an extraordinary step. For Donald Trump’s campaign, it’s become part of his routine.

When the former president said that that undocumented immigrants were “poisoning the blood of our country” during a New Hampshire rally on Saturday, a Biden campaign aide charged with monitoring Trump immediately circulated the comments to staffers, according to senior officials.

Joe Biden didn’t compare Trump to Hitler. Trump compared himself to Hitler by blatantly using his fascist rhetoric. The Biden campaign rightly pointed it out as has everyone else who is shocked and appalled by what they are seeing. It’s not a “routine” campaign ploy which is how that sounded to me.

Anyway, this is how Trump’s fascism gets normalized. It’s not by seeing him say what he said, it’s by the press framing it as “routine” politics.

Happy Hollandaise, everyone

The coming war may not be civil

A “yankee” in a meeting yesterday said she’d moved to North Carolina from New England because she felt her political activism would make more of a difference here. She may be right. This really is going to be a battleground in 2024.

This Morning Digest edition from Daily Kos makes that case:

NC Supreme Court: Candidate filing closed this past Friday for the March 5 primaries in North Carolina, a perennial swing state that will host closely watched races up and down the ballot. Not to be overlooked, though, is a crucial contest for an eight-year term on the state Supreme Court.

Gov. Roy Cooper appointed Allison Riggs in September after Mike Morgan, a fellow Democrat, resigned ahead of launching a bid for governor. Had Morgan instead sought and won another term on the court, he would have faced mandatory retirement at the age of 72, in 2027, less than halfway through a second term. The new justice, whose appointment at 42 made her the youngest woman ever to serve on the court, won’t face that same problem, but she doesn’t have a clear path to the general election.

Riggs instead faces an intraparty challenge from Superior Court Judge Lora Cubbage, who serves the Greensboro area. Cubbage ran statewide in 2020 for a seat on the Court of Appeals, but she lost to Republican Fred Gore 51-49 as Donald Trump was narrowly carrying the state. A new survey from Public Policy Polling shows that both candidates start off with little name recognition, with Riggs ahead 12-9.

The only Republican in the race is Court of Appeals Judge Jefferson Griffin, who won his post three years ago by unseating Democratic incumbent Chris Brook, also by a 51-49 margin as Republicans were seeping every statewide court race in 2020.

Democrats need to hold this seat in November as part of a multi-cycle plan that represents their only realistic path toward rolling back the GOP’s iron grip on state politics. Last year, Republicans flipped two Supreme Court seats to turn what had been a 4-3 Democratic edge into a 5-2 GOP majority, and Democrats have little room for error if they’re to regain control this decade. To eventually take a 4-3 majority, Democrats would need to win four of the court’s next five races, a battery that includes Riggs’ election campaign next year, fellow Democratic Justice Anita Earls’ reelection bid in 2026, and contests for three Republican-held seats in 2028.

It’s also critical that Democrats prevail in next year’s race to succeed Cooper as governor so that they can stop Republican legislators from adding two seats to the court for a GOP governor to fill, a court-packing plan they’ve been contemplating for years. A Democratic governor could also fill any other vacancies that arise.

Allison Riggs was an attorney for two friends when she argued Rucho v. Common Cause before the U.S. Supreme Court for the Southern Coalition for Social Justice. You may recall that the court punted on the partisan gerrymandering issue. Chief Justice John Roberts argued that partisan gerrymandering is a political question that is non-justiciable. That’s court-speak for “we shouldn’t mix in.”

Did I mention Allison is running to hold her seat?

Morning Digest has much more on races across the U.S., including the impact of the most recent GOP gerrymandering of N.C. congressional districts.

(h/t BF)

Happy Hollandaise to all y’all!

The U.S. is not immune

Rachel Maddow Monday night opened her show by asking why Donald Trump keeps echoing Hitler and Mussolini in his speeches. With the mainstream media finally calling him out for talking like a fascist, he is, as Republicans do, doubling down on it. His speeches, Maddow said, have become a “fascist dictator greatest hits mix tape.”

So why does he do it even after being called out? Because “this stuff works.” It gets applause. His audience eats it up. Because his adversaries hate it. And because the terminally insecure Trump will do anything, anything, to draw attention and adulation.

Maddow suggests stopping it is not rocket science. One thing to do is to refuse to participate in any politics that relies on treating opponents as monsters, a menace to be elimininated. Stand up for any targeted group. Support the legal and political systems that protect us all. Refuse to give in to the notion that we are “different kinds of humans, that we need an “iron fist more than democracy.” It’s not enough to call it out.

Over at Threads *, George Takei re-posted a comment I think all of us are our asking ourselves about now.

Post by @georgehtakei

View on Threads

I’ve featured a post by my friend Dave Neiwert, author of several books on eliminationism, that’s a sad comment on how things went down in Germany. Look again at this extract from “Ash on the Sills” I posted here.

Dean Obeidallah posted this provacative ditty on Threads:

Given Trump repeatedly quoting Hitler even after the backlash and the MAGA crowd cheering those lines, we must now call MAGA a neo-Nazi movement. I’m not being hyperbolic. We are confronted by a fascist, white supremacist movement that can NOT co-exist with a democratic Republic.

Seth Abramson replied:

THIS IS IMPORTANT.

Dean makes an absolutely critical point here.

If Trump is the unquestioned leader of the so-called MAGA “movement,” and he is, and if—years after we first learned from his ex-wife that he kept a book of Adolf Hitler’s speeches by his bedside—he’s started using fully plagiarized, explicitly Hitlerian rhetoric about nonwhite immigrants in his 2024 stump speech, must we not call MAGA a neo-Nazi movement?

And must journalists not report this as a fact?

I say yes. What say you?

Stonekettle (Jim Wright) in a separate comment adds something more than rhetorical pushback:

Remember a couple years ago when “Would you kill baby Hitler?” was the big question on social media? And people agonized over the morals of their answer? Well, unless science invents a time machine and you’re tapped for the mission, you probably don’t have to worry about it.

But you know what you can do? You can prevent the NEXT Hitler and you don’t even have to smother any babies. Just show up and vote. And bring your friends.

Want a better future? Be a better citizen.

This is a battle of values. We have to assert the moral superiority of ours more than simply call out theirs. Here’s Wisconsin Democrats’ state chair Ben Wikler talking about how [timestamp 54:30 to 55:22]: “What you want to do is draw the circle that includes you and your audience around values, things that you all agree on, and then push the other side out of the circle.”

That’s just what Joe Biden did last year with his democracy speech in front of Independence Hall in Philadelphia. Republicans did not like it. And it’s important that they don’t. It draws a contrast people on the fence need to see. It forces adversaries to have your conversation, not theirs.

Rep. Alexandria Ocasio-Cortez caught grief from the left and the right over wearing that “Tax the Rich” dress to a pricey Met gala. But guess what? Photos went viral. For a week, the internet, Fox News, and right-wing pundits were having the conversation AOC wanted to have about taxes. Alienate the right and they just might lend you their multibillion-dollar media empire to spread your message for you.

Drew Westen, author of “The Political Brain,” chuckled when I said a key lesson I took from his messaging book came down to this: If you’re not pissing ‘em off, you’re not doing it right.

* It’s like VHS and Betamax all over again. (Remember, kids?) Like many of you watching Elon Musk’s slow, auto-erotic strangulation of the former Twitter, I’m signed up on several of the alternatives waiting to see what shakes out as the default replacement. On Mastodon (open source, federated), Theads (another Zuckerberg product), and Blue Sky. We’ll see.

Happy Hollandaise to all y’all!

They’re saying he’s Jack Smith’s secret weapon

You’ve all no doubt heard that the Special Prosecutor has asked the Supreme Court to decide if Trump is immune from criminal charges and they agreed to decide whether to hear it by this week. Since that time, the appeals court did agree to hear it so there’s no way of knowing if that will affect the Supremes’ decision.

When the filing was revealed all the legal beagles on TV were atwitter about the fact that it was signed by a DOJ attorney who is apparently considered one of the super-duper legal heavyweights in the country. This piece in Vanity Fair suggests that he may be Smith’s secret weapon:

Borrowing from the Jaworski playbook, as well as the precedent set in the resulting landmark United States v. Nixon, special counsel Jack Smith has urged today’s Supreme Court to agree to resolve a vexing question of the Trump years and to do so as quickly as possible: Can a president stand in the middle of Fifth Avenue, shoot someone dead, and be immune from criminal prosecution because the shooting occurred while he was president?

No, Smith didn’t frame his request so colloquially. However, he might have been justified in invoking Nixon’s infamous line, “Well, when the president does it, that means it is not illegal.” Instead, he asked the justices to decide a question that he called “central to our democracy”: whether Trump is “absolutely immune from federal prosecution for crimes committed while in office.” Separately, the special counsel is seeking a resolution for a secondary question: whether Trump’s prior impeachment and acquittal over his failed attempt to remain in power after the events of January 6 insulates him from criminal prosecution.

[The words were likely written] by the special counsel’s secret weapon in this fast-track appeal: Michael Dreeben, a longtime former Justice Department official, served for decades in the Office for the Solicitor General, which is charged with representing the government before the Supreme Court. He’s the “counsel of record” in this case—the person who will most certainly argue this case if and when it’s officially added to the docket. His name caught me and many others by surprise—Dreeben is a person the justices pay close attention to, with more than 100 oral arguments under his belt for both Democratic and Republican administrations.

Dreeben is also a thorn in Trump’s side in a subtler way: As a member of Robert Mueller’s Russia investigation, he has been described as “the biggest brain in criminal law in the country”—whatever that means—and someone who can think several steps ahead. Indeed, Dreeben has most certainly already foreseen the practical effect of Trump continuing to insist presidents deserve king-like absolute immunity…

This is the fun part where we game the whole thing out:

As it happens, this flurry of activity in the courts, and that to come, isn’t the only development Smith and his office will have to play three-dimensional chess with. On the same day that Chutkan hit the pause button in the election subversion case, the Supreme Court agreed to hear a long-running dispute involving a trio of January 6 defendants who claim that the Justice Department overreached in prosecuting them for obstructing Congress. The reason these slow-moving cases matter, as Roger Parloff has written extensively over at Lawfare, is their overlap with two of Trump’s charges in DC—and because 300-plus people who were present at the Capitol siege have been charged under the same law.

Since the early days of the Justice Department’s probe of the insurrection, federal prosecutors have turned to a subsection of the Sarbanes-Oxley Act of 2002—enacted in the wake of the Enron scandal—that makes it a crime to impede an official government proceeding. Hundreds have been charged under it. But to the defendants, that law is merely a document-tampering statute that doesn’t apply to obstructing the joint session of Congress on January 6. Yet a coterie of trial judges across the political spectrum have rejected that argument; the only exception has been Carl Nichols, a Trump appointee who last year agreed that a charge of obstruction was only appropriate if it concerned “a record, a document, or other object” associated with the Capitol breach.

I won’t attempt to parse the language of 18 U.S.C. 1512(c)(2), the law being challenged, which criminalizes anyone who “corruptly … otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” But suffice it to say, a divided DC Circuit concluded that the language was unambiguous and covered the conduct of these three January 6 defendants. “Under the most natural reading of the statute, § 1512(c)(2) applies to all forms of corrupt obstruction of an official proceeding,” above and beyond simply document-tampering, wrote US Circuit Judge Florence Pan, a Joe Biden appointee.

If that weren’t head-spinning enough, Jack Smith isn’t the one overseeing these cases and the hundreds of other January 6 prosecutions that are similar to it—the Justice Department and the US Attorney’s Office in Washington are. As a result, in principle, he’s not directly involved with how Solicitor General Elizabeth Prelogar defends these prosecutions before the justices. As she put it in a brief urging the court to decline hearing these appeals: Even accepting that the law under attack is an evidence-tampering statute doesn’t help the defendants. “Preventing the Members of Congress from validating the state certificates thus constitutes evidence-focused obstruction,” Prelogar wrote.

Court observers are abuzz, if not outright skeptical, that a majority on the Supreme Court has any appetite for undermining hundreds of federal prosecutions, let alone ones against Trump. If there’s any comfort in this tangled web, it is that the justices have had very little tolerance for anything related to Trump’s disruption of the peaceful transfer of power after the 2020 election. From rejecting his and Texas’s long-shot bid to overturn the election results in the states Biden won to siding with the January 6 committee to declining his intervention in the Mar-a-Lago classified documents dispute, their patience appears to be wearing thin. If that pattern holds, there’s a reasonable chance that a majority won’t let him get away with subverting what remains of our democracy.

I’ll confess that did make my head spin a little bit. (Maybe it’s time for me to take a walk and have a drink!) But it’s fascinating stuff even if I don’t actually have much faith in the Supreme Court to do the right thing. But you never know. The idea of overturning all the January 6th cases does seem a bit much.

Stay tuned. This is going to be one of the most momentous times in American judicial history. Let’s just hope it’s momentous in a good way for a change…

Happy Hollandaise, everyone!